FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

October 25, 2013

Elisabeth A. Shumaker
Clerk of Court

STEPHEN D. COOK,
Plaintiff-Appellant/
Cross-Appellee,
v.
JUSTIN AAGARD, a Sanpete County
Sheriffs Deputy; CHAD HUFF, a Police
Officer with the City of Fountain Green;
SANPETE COUNTY; SANPETE
VALLEY HOSPITAL,

Nos. 12-4214 & 13-4003

(D.C. No. 2:12-CV-00157-DN)
(D. Utah)

Defendants Appellees,
and
STAN ANDERSON, an Ephraim City
Police Officer; EPHRAIM CITY,
Defendants-Appellees/
Cross-Appellants.
ORDER AND JUDGMENT*

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and

OBRIEN, Circuit Judge.
Stephen D. Cook filed a 42 U.S.C. 1983 civil rights complaint claiming
defendants violated his constitutional rights when he was detained, searched, and
arrested on drug possession charges. The district court granted summary judgment in
favor of the defendants, ruling Cooks suit was precluded because he previously
litigated, and lost, the identical claims in state criminal proceedings. Exercising
jurisdiction under 28 U.S.C. 1291, we affirm and dismiss as moot the
cross-appellants cross-appeal.
The district courts memorandum decision and order accurately and thoroughly
recounts the factual and procedural background of this case; thus, we summarize only
the most salient points. In 2008, Cook was charged in Ephraim City, Utah with
possession of marijuana and drug paraphernalia and interfering with a lawful arrest.
He moved to suppress the results of a urine test and to dismiss the charges, claiming
the arresting officer, Deputy Justin Aagard, lacked probable cause to detain, search,
and arrest him; omitted material facts from his search-warrant affidavit; and
catheterized him to obtain the urine sample when a blood test would have sufficed.
The state court held an evidentiary hearing on these motions and denied Cooks
motions. It ruled probable cause supported Cooks detention, search, and arrest, and
the challenged omissions from Deputy Aagards affidavit did not alter this
conclusion. Further, it ruled Cooks constitutional rights were not violated by the
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catheterization because the state presented uncontroverted evidence Cook consented

to it.
Cook then entered a plea in abeyance. See State v. Wimberly, 305 P.3d 1072,
1074 (Utah. App. 2013) (explaining a plea in abeyance is a court order accepting a
plea of guilty or of no contest from the defendant but not, at that time, entering
judgment of conviction against him on condition he comply with specific
conditions) (internal quotation marks omitted)). As part of his plea, Cook admitted
he had illegally possessed marijuana. The state later dismissed the criminal charges
after Cook met agreed-upon conditions. See id. at 1075 (After successful
completion of [the plea-in-abeyance] conditions, a trial court may dismiss the charge
and no conviction will remain on the defendants record.).
Three years later, Cook filed this 1983 action against Deputy Aagard; the
back-up police officers; Ephraim City; and Sanpete Valley Hospital, where the
catheterization took place. Cook asserted the defendants violated his constitutional
rights in connection with his March 2008 arrest. He claimed (1) unlawful search and
seizure without probable cause; (2) illegal detention without probable cause;
(3) excessive force in taking his urine sample; (4) failure to advise him of his
Miranda rights; (5) failure to intervene; (6) failure to train; (7) violation of
procedural due process; and (8) violation of substantive due process. On defendants
motion for summary judgment, the district court ruled the state court had already
determined probable cause supported Cooks detention, search and arrest, and Cooks
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constitutional rights were not violated by the catheterization. Thus, it ruled Cooks
action was barred by Utahs doctrine of issue preclusion.
Cook appeals this ruling. Defendants Stan Anderson and Ephraim City
cross-appeal the district courts ruling that the action was not additionally barred by
the doctrine of judicial estoppel. We review de novo the district courts grant of
summary judgment and its interpretation of Utahs law. Bushco v. Shurtleff,
__ F.3d __, 2013 WL 4779612, at *3 (10th Cir. Sept. 9, 2013).
A federal civil rights plaintiff may be collaterally estopped from litigating a
1983 claim by a state court criminal judgment, so long as he had a full and fair
opportunity to litigate the issue at the state criminal proceedings. Allen v. McCurry,
449 U.S. 90, 104-05 (1980). The preclusive effect in federal court of a state
judgment is governed by the states preclusion rules. Valley View Angus Ranch, Inc.
v. Duke Energy Field Servs., Inc., 497 F.3d 1096, 1100 (10th Cir. 2007). Under Utah
law, issue preclusion, prevents parties or their privies from relitigating facts and
issues in the second suit that were fully litigated in the first suit, provided the
following four elements are met:
(i) the party against whom issue preclusion is asserted must have been a
party to or in privity with a party to the prior adjudication; (ii) the issue
decided in the prior adjudication must be identical to the one presented
in the instant action; (iii) the issue in the first action must have been
completely, fully, and fairly litigated; and (iv) the first suit must have
resulted in a final judgment on the merits.
Oman v. Davis Sch. Dist., 194 P.3d 956, 965 (Utah 2008) (internal quotation marks
omitted).
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Cook contends the second, third and fourth factors are not met here. First, he
claims the issues decided by the Utah court were not essential to the resolution of his
criminal proceedings and, thus, are not identical to his 1983 action. See Zufelt v.
Haste, Inc., 142 P.3d 594, 597 (Utah App. 2006) (What is critical in determining
identical issues is whether the issue that was actually litigated in the first suit was
essential to resolution of that suit and is the same factual issue as that raised in a
second suit. (brackets and internal quotation marks omitted)). The district court
found Cook conceded this factor in his pleadings. From our independent review, it is
evident the issues in the state proceedings are identical to those in the 1983 action.
In both proceedings, the claims are based on the same facts and the same dispositive
constitutional issues. Essential to Cooks success in both proceedings was a finding
that there was no probable cause for his detention, search, and arrest, and that the
catheterization violated his constitutional rights. The state court decided those issues
and Cook lost.
Cook argues the issues are not identical because he included additional facts
about the detention and search in his 1983 complaint, which he knew of but chose
not to raise in the suppression hearing. He asserts these new facts might alter the
probable cause totality-of-the-circumstances analysis. His argument is unavailing.
Utah broadly defines the issue precluded: [t]he minimum reach of issue preclusion
beyond precise repetition of the first action is to prevent relitigation by mere
introduction of cumulative evidence bearing on a simple historical fact that has once
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been decided. Harline v. Barker, 912 P.2d 433, 443 (Utah 1996) (emphasis in
original; quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure 4417, at 157 (1981)). Issue preclusion extends to
every matter which was or might have been urged to sustain or defeat the
determination actually made. Macris & Assoc., Inc., v. Neways, Inc., 16 P.3d 1214,
1223 (Utah 2000) ([A] party cannot by negligence or design withhold issues and
litigate them in separate actions.). Cook chose not to present evidence available to
him at the suppression hearing, but the issues he raised and were determined there are
identical to the issues here.
Next, Cook contends the suppression hearing was not a complete, full, and fair
litigation of these issues, but was a summary proceeding addressing some immaterial
evidentiary issues which likely would have been re-considered had he gone to trial.
To the contrary, the constitutional issues in Cooks criminal proceedings were
litigated in an evidentiary hearing at which he was represented by counsel, and had
the right and opportunity to testify, present evidence, call and cross-examine
witnesses, and appeal the courts ruling. See 3D Constr. & Dev., L.L.C. v. Old
Standard Life Ins. Co., 117 P.3d 1082, 1087 (Utah App. 2005) (holding the
completely, fully, fairly element is met if the party against whom preclusion is
sought had adequate notice and an opportunity to be heard on the issue.). There is no
reason to doubt the quality, extensiveness, or fairness of the criminal proceeding and
we agree with the district court that Cook had his day in court. Buckner v.
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Kennard, 99 P.3d 842, 846 (Utah 2004) ([O]nce a party has had his or her day in
court and lost, he or she does not get a second chance to prevail on the same
issues.).
Third, Cook contends there was no final judgment on the merits because his
criminal case was ultimately dismissed. But under Utah law, a judgment does not
have to proceed to trial to be on the merits for issue preclusion. State v.
Sommerville, 297 P.3d 665, 674 (Utah App. 2013) (internal quotation marks omitted).
Rather, [it] may be made at any stage of the litigation, so long as the judgment
rendered is based upon a proper application of the relevant law to the facts of the
case. Id. at 674-75 (internal quotation marks, brackets, and ellipses omitted).
On the merits is a term of art that means that a judgment is rendered
only after a court has evaluated the relevant evidence and the parties
substantive arguments. . . . A judgment is upon the merits when it
amounts to a declaration of the law as to the respective rights and duties
of the parties based on facts and evidence upon which the right of
recovery depend, irrespective of formal, technical, or dilatory objections
or contentions.
Id. at 674 (internal quotation marks, brackets and ellipses omitted).
The state court ruling was a final adjudication on the merits for purposes of issue
preclusion because it rendered a substantive ruling on the merits of the constitutional
issues presented, based on the relevant law applied to the facts of the claims.
Finally, Cook argues policy considerations prevent application of issue
preclusion. Utah courts have recognized that courts have discretion to limit the use
of issue preclusion, see Gudmundson v. Del Ozone, 232 P.3d 1059, 1067
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(Utah 2010), but we are not persuaded the district court abused its discretion in
applying the doctrine here.
Accordingly, we affirm the district courts grant of summary judgment.
Because we decide this appeal on the basis of issue preclusion, we dismiss as moot
Stan Andersons and Ephraim Citys cross-appeal.

Entered for the Court

Terrence L. OBrien
Circuit Judge

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